DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 23 November 2017,
by Jon New m an (USA), DRC judge,
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the cas e
1.
On 4 July 2016, the player of Country B, Player A (hereinafter: the Claimant), and
the club of Country D, Club C (hereinafter: the Respondent), signed an
employment contract valid for the “2016-2017 football season”.
2.
In accordance with clause 3.1 of the employment contract, the Respondent
undertook to pay to the Claimant the amount of EUR 35,000 for the duration of
the contract.
3.
By correspondence dated 31 July 2017, the Claimant put the Respondent in
default of payment of EUR 17,500 for the period between January 2017 and the
end of the season setting a 10 days’ time limit in order to remedy the default.
4.
On 25 September 2017, the Claimant lodged a claim against the Respondent in
front of FIFA asking that the Respondent be ordered to pay to him overdue
payables in the amount of EUR 17,500.
5.
The Claimant further asks to be awarded interest of 5% p.a. as from the day
following each respective due date and that the Respondent be ordered to pay
legal and procedural costs.
6.
In spite of having been invited to do so, the Respondent has not replied to the
claim.
II.
Cons iderations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: the DRC
judge) analysed whether it was competent to deal with the matter at hand. In this
respect, he took note that the present matter was submitted to FIFA on 25
September 2017. Consequently, the 2017 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of
the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in
conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2016) he is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension
between a player of Country B and a club of Country D.
3.
Furthermore, the DRC judge analyzed which regulations should be applicable as
to the substance of the matter. In this respect, he confirmed that in accordance
Player A, Country B / Club C, Country D
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with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of
Players (edition 2016) and considering that the present claim was lodged on 25
September 2017, the 2016 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this
respect, the DRC judge started by acknowledging all the above-mentioned facts as
well as the arguments and the documentation on file. However, the DRC judge
emphasized that in the following considerations he will refer only to the facts,
arguments and documentary evidence, which he considered pertinent for the
assessment of the matter at hand. Moreover, the DRC judge recalled that in
accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within
the scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the Transfer Matching
System (hereinafter: TMS).
5.
Having said this, the DRC judge acknowledged that the Claimant and the
Respondent signed an employment contract on 4 July 2016 valid for the “20162017 football season” in accordance with which the Claimant was entitled to
receive from the Respondent, inter alia, an amount of EUR 35,000. In this regard,
the DRC judge also observed that according to the information in TMS, the 20162017 football season of Country D started on 21 August 2016 and ended on 31
May 2017.
6.
The DRC judge noted that, on 25 September 2017, the Claimant lodged a claim
against the Respondent in front of FIFA, maintaining that the Respondent has
overdue payables towards him in the total amount of EUR 17,500.
7.
In this context, the DRC judge took particular note of the fact that, on 31 July
2017, the Claimant put the Respondent in default of payment of the
aforementioned amount, setting a 10 days’ time limit in order to remedy the
default.
8.
Consequently, the DRC judge concluded that the Claimant had duly proceeded in
accordance with art. 12bis par. 3 of the Regulations, which stipulates that the
Claimant must have put the debtor club in default in writing and have granted a
deadline of at least ten days for the debtor club to comply with its financial
obligation(s).
9.
Subsequently, the DRC judge took into account that the Respondent, for its part,
failed to present its response to the claim of the Claimant, in spite of having been
Player A, Country B / Club C, Country D
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invited to do so. In this way, the DRC judge considered that the Respondent
renounced its right to defence and thus accepted the allegations of the Claimant.
10.
Furthermore, as a consequence of the aforementioned consideration, the DRC
judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules he
shall take a decision upon the basis of the documents already on file, in other
words, upon the statements and documents presented by the Claimant.
11.
Taking into account the documentation presented by the Claimant in support of
his petition, the DRC judge concluded that the Claimant had substantiated his
claim pertaining to overdue payables with sufficient documentary evidence.
12.
On account of the aforementioned considerations, the DRC judge established that
the Respondent failed to remit the Claimant’s remuneration in the total amount
of EUR 17,500.
13.
In addition, the DRC judge established that the Respondent had delayed a due
payment for more than 30 days without a prima facie contractual basis.
14.
Consequently, the DRC judge decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant
overdue payables in the total amount of EUR 17,500.
15.
Furthermore, the DRC judge pointed out that the contract does not clearly
indicates a due date of payment and that the contract ran until 31 May 2017 (end
of the 2016-2017 football season of Country D). In this regard, and taking into
account the Claimant’s request as well as the constant practice of the Dispute
Resolution Chamber, the DRC judge decided that the Respondent must pay to the
Claimant interest of 5% p.a. on the amount of EUR 17,500 as from the day
following the due date, 1 June 2017, until the date of effective payment.
16.
In continuation, taking into account the consideration under number II./13. above,
the DRC judge referred to art.12bis par. 2 of the Regulations which stipulates that
any club found to have delayed a due payment for more than 30 days without a
prima facie contractual basis may be sanctioned in accordance with art. 12bis par.
4 of the Regulations.
17.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. Bearing in mind that the
Respondent did not reply to the claim of the Claimant and that the Respondent
has previously been found by the Dispute Resolution Chamber to have neglected
its contractual obligations on multiple occasions in the recent past, the DRC judge
decided to impose a fine on the Respondent in accordance with art. 12bis par. 4
Player A, Country B / Club C, Country D
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lit. c) of the Regulations. On this basis and taking into consideration the amount
due of EUR 17,500, the DRC judge regarded a fine amounting to CHF 6,000 as
appropriate and hence decided to impose said fine on the Respondent.
18.
In this connection, the DRC judge wished to highlight that a repeated offence will
be considered as an aggravating circumstance and lead to more severe penalty in
accordance with art. 12bis par. 6 of the Regulations.
19.
Furthermore, as regards the claimed legal expenses and procedural costs, the DRC
judge referred to art. 18 par. 4 of the Procedural Rules as well as to the longstanding and well-established jurisprudence of the DRC, in accordance with which
no procedural compensation shall be awarded in proceedings in front of the
Dispute Resolution Chamber. Consequently, the DRC judge decided to reject the
Claimant’s request relating to legal expenses and procedural costs.
20.
The DRC judge concluded his deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
III.
Decis ion of the DRC judge
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, overdue payables in the amount of EUR
17,500, plus interest at the rate of 5% p.a. as from 1 June 2017 until the date of
effective payment.
3.
In the event that the amount plus interest due to the Claimant is not paid by the
Respondent within the stated time limit, the present matter shall be submitted,
upon request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance is to be made and to notify the DRC
judge of every payment received.
6.
The Respondent is ordered to pay a fine in the amount of
CHF 6,000. The fine is to be paid w ithin 30 day s of notification of the present
decision to FIFA to the following bank account with reference to case nr.XXX:
Player A, Country B / Club C, Country D
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UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal must
be sent to the CAS directly within 21 days of receipt of notification of this decision and
shall contain all the elements in accordance with point 2 of the directives issued by the
CAS, a copy of which we enclose hereto. Within another 10 days following the expiry
of the time limit for filing the statement of appeal, the appellant shall file a brief
stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4
of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the DRC judge:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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